# State v. Marsh > Supreme Court of Kansas · December 17, 2004 · 278 Kan. 520 URL: https://www.frixlaw.com/law-library/cases/9795509 ## Case - **Full name:** State of Kansas, Appellee, v. Michael Lee Marsh II, Appellant - **Court:** Supreme Court of Kansas - **Decided:** December 17, 2004 - **Citations:** 278 Kan. 520; 102 P.3d 445; 2004 Kan. LEXIS 772 - **Precedential status:** Published - **Opinion:** Dissent by McFarland - **Judges:** Allegrucci, Luckert, Gernon, Beier, Nuss, McFarland - **Cited by:** 81 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Kansas v. Marsh, 548 U.S. 163 (2006). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795509 ## How later opinions describe it (automated extraction) - applying labels to the interpretive canon of construing a statute to avoid constitutional questions ## Opinion text McFarland, C.J., dissenting: I respectfully dissent. I agree with Justice Davis that the weighing equation contained in K.S.A. 21-4624(e) is constitutional as written. If we were writing on a clean slate, there would be no reason for me to further write in dissent; however, such is not the case. In State v. Kleypas, 272 Kan. 894 , 40 P.3d 139 (2001), the majority opinion construed K.S.A, 21-4624(e) to be constitutional; I joined in the dissent of Justice Davis, as did Justice Abbott in a separate dissenting opinion, concluding the statute was constitutional as written. Thus, the Kleypas court unanimously upheld the constitutionality of K.S.A. 21-4624(e). Now, without any intervening change in substantive law, the ma *577 jority opinion overrules Kleypas , not because the statute as construed is unconstitutional, but because the majority decides the Kleypas court exceeded its judicial authority in construing the statute. Kleypas was a 4 to 3 decision, consisting of a majority opinion and two written dissents. None of the three opinions took the position that the Kansas death penalty law must be struck down as constitutionally impermissible. The majority opinion upheld the law with an extremely minor judicial construction relative to equipoise, with the three dissenters upholding the law as written. In the case before us, another 4 to 3 decision, the majority concludes the death penalty is fatally flawed and rejects the majority’s action in Kleypas which remedied the perceived equipoise flaw. There has been no change in relevant constitutional law as expressed by the United States Supreme Court. The only change has been the composition of the Kansas Supreme Court occasioned by the retirements of Justices Larson, Six, Lockett, and Abbott. While fidelity to the doctrine of stare decisis is not an “inexorable command,” we should be highly skeptical of reversing an earlier decision where nothing has changed except the composition of the court. See Payne v. Tennessee, 501 U.S. 808, 848 , 115 L. Ed. 2d 720 , 111 S. Ct. 2597 , reh. denied 501 U.S. 1277 (1991) (Marshall J., dissenting). The importance of the doctrine of stare decisis to our legal system has been often stated. The United States Supreme Court has recognized that, although not an “inexorable command,” “[s]tare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. at 827 . Stare decisis is: “the means by which [the Court] ensure[s] that the law will not merely change erratically, but will develop in a principled and intelligible fashion. [Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” Vasquez v. Hillery, 474 U.S. 254, 265-66 , 88 L. Ed. 2d 598 , 106 S. Ct. 617 (1986). See also Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 , 120 L. Ed. 2d 674 , 112 S. Ct. 2791 (1992) (stating that *578 the “very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable”); Thornburgh v. American Coll. of Obst & Gyn., 476 U.S. 747, 786-87 , 90 L. Ed. 2d 779 , 106 S. Ct. 2169 (1986) (White, J., dissenting) (stating that “[t]he rule of stare decisis is essential if case-by-case judicial decisionmaking is to be reconciled with the principle of the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results”). We have similarly acknowledged the importance of stare decisis in our decisions, stating: “once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised. Stare decisis operates to promote system^ wide stability and continuity by ensuring the survival of decisions that have been previously approved by this court. . . . The application of stare decisis ensures stability and continuity — demonstrating a continuing legitimacy of judicial review.” Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356 , 789 P.2d 541 (1990), disapproved on other grounds, Bair v. Peck, 248 Kan. 824, 844 , 811 P.2d 1176 (1991). The majority opinion pays lip service to the concept of stare decisis, but hastily disregards it, stating: “Stare decisis is designed to protect well-settled and sound case law from precipitous or impulsive changes. It is not designed to insulate a questionable constitutional rule from thoughtful critique and, when called for, abandonment. This is especially true in a situation like the one facing us here. Kleypas’ application of the avoidance doctrine was not fully vetted. It is young and previously untested. Its rewriting of K.S.A. 21-4624(e) was not only clearly erroneous; as a constitutional adjudication, it encroached upon the power of the legislature.” 278 Kan. at 544-45. The Kleypas appeal was heard in December 2000. In the preceding 6 months, an unprecedented number of hours was spent by many court research attorneys preparing the lengthiest research memorandum I have ever seen. Fifty-one issues relating to the validity of the conviction, sentence, and the constitutionality of the Kansas death penalty law as a whole were exhaustively considered by this court. At the end of a year of examination and deliberation, *579 on December 28, 2001, we issued a 338-page ruling in which we concluded that the Kansas death penalty law, and specifically the weighing equation contained in K.S.A. 21-4624(e), was constitutional. Far more time was spent on this case by the justices, in general, and on the weighing issue, in particular, than any other case since I became a member of this court in 1977. The majority opinion brushes off the majority holding in Kleypas; stating the issue was not “fully vetted,” cannot withstand “thoughtful critique,” and is “clearly erroneous.” While it is true that stare decisis need not be an “inexorable command,” any departure from it should be “informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.” See Planned Parenthood v. Casey, 505 U.S. at 854 . These considerations include: (1) whether the decision sought to be overturned has proven to be intolerable simply in defying practical “workability”; (2) whether the decision is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) whether related principles of law have so far developed as to have left the rule established by the old decision no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or have come to be seen so differently, as to have robbed the rule established by the old decision of significant application or justification. 505 U.S. at 854-55 . There can be no serious contention that our decision in Kleypas construing K.S.A. 21-4624(e) in a constitutional manner has proven to be unworkable. From the beginning, the perceived constitutional problem with the weighing equation was slight: the weighing equation mandated death rather than a life sentence in the extremely unlikely event that the juiy determined the aggravating and mitigating circumstances to be in perfect balance. It is almost impossible to conceive as to how this event would come about in a real, as opposed to hypothetical, situation. In construing the statute so as to mandate life in that circumstance, we avoided the possibility that the entire Kansas death penalty law would be ren *580 dered invalid because of its application to an artificial situation that would almost certainly never arise. There is no real question that the statute, as construed by our decision in Kleypas , is constitutional. This leads us to the question of whether our decision in Kleypas has been “subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation.” See Casey, 505 U.S. at 854 . “The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application.” 505 U.S. at 855 . From the majority opinion, one might think that there could have been no reliance on our decision in Kleypas , inasmuch as the majority characterizes it as “young and previously untested.” 278 Kan. at 544. However, this ignores the very real reliance that the legislature, courts, and the people of Kansas have placed on our decision. Whatever one’s opinion on the moral validity of the death penalty, the fact remains that in 1994, the legislature, acting on behalf of the people of Kansas, passed into law an act providing for the death penalty as a possible punishment for a narrow, clearly defined group of intentional and premeditated murders. See L. 1994, ch. 252. State v. Kleypas was the first case to consider the validity of that death penalty, and our decision was eagerly awaited by the people of Kansas as a test of whether the death penalty that the legislature had enacted would pass constitutional muster. Through our opinion in Kleypas , we told the legislature, and by extension the people of Kansas, that the death penalty law it had enacted was constitutional as construed by this court. The legislature had the right to rely on our construction of the weighing equation in K.S.A. 21-4624(e), and concluded that no further action on its part was necessary in order for Kansas to have a constitutional death penalty. In reliance on our assurances that the Kansas death penalty law was constitutional as construed, a substantial number of death penalty proceedings have been tried in this state, resulting in the imposition of five death sentences. A report by the Legislative Division of Post Audit estimated the taxpayers’ costs of the post-Kleypas cases included in its study in the millions of dollars. *581 See Kansas Legislative Post Audit Committee Performance Audit Report, Costs Incurred for Death Penalty Cases, Appendix D (December 2003). According to the majority, what this court should have done in Kleypas was declare the statute unconstitutional on its face. The majority therefore believes that is the appropriate remedy here. However, the situation is not the same here as it was in Kleypas . Where this court has not spoken on the constitutionality of a statute, all of those affected by it are on notice that its constitutionality has not been tested, and that it might be found wanting. However, where this court has addressed the precise statute involved, on the precise point articulated, and found the statute to be constitutional, persons should be entitled to rely on that decision, not see it overturned the very next time a case involving the same issue comes before this court. This reliance militates against haphazardly discarding our decision in Kleypas . Certainly, there can be no argument that “related principles of law have so far developed as to have left the old rule” established in Kleypas “no more than a remnant of abandoned doctrine.” See Casey, 505 U.S. at 855 . Our decision in Kleypas is a mere 3 years old, and nothing this court has said in the interim has evidenced our intention to abandon its underlying principles. Similarly, there has been nothing in the jurisprudence of the United States Supreme Court during that time to show that our decision in Kleypas was incorrect. Nor have “facts ... so changed, or come to be seen so differently, as to have robbed the old rule [established by the Kleypas decision] of significant application or justification.” See Planned Parenthood v. Casey, 505 U.S. at 855 . There has been no significant change in the factual underpinnings of our Kleypas decision, and no change in facts that would cause its central holding to be rendered obsolete. The majority’s decision today, by the barest of margins, discards our 3-year-old decision in Kleypas , not because that decision has become unworkable, or the laws or facts underpinning it have changed, or a United States Supreme Court decision mandates it, but simply because this new majority has the power to do so. And *582 to what end? This is not a situation where the continuation of an allegedly erroneous decision has the potential to work great hardship on the rights of individuals. Our construction of the statute in Kleypas does not adversely affect the rights of those charged with capital murder; rather, it actually provides greater protection. There is no question that the weighing equation in K.S.A. 21-4624(e), as construed by our decision in Kleypas , is constitutional. Thus, there is now no possibility that any defendant will be sentenced to death where the aggravating and mitigating circumstances are in equipoise. This court’s decision in Kleypas creates no prejudice to any defendant. Nevertheless, the majority’s decision herein has the anomalous consequence that death-sentence defendants: Reginald D. Carr, Jonathan D. Carr, John Robinson, Sr., Douglas Belt, and Michael L. Marsh, II (defendant herein), will have their death sentences swept away, despite the fact that the equipoise factor which so concerns the majority was not present. The death penalty proceedings in each of these five cases, except Marsh, were tried post-Kleypas and, thus, each of the juries was instructed that, pursuant to our decision in Kleypas , the aggravating factors were required to outweigh the mitigating factors for death to be imposed, and each jury so found. The majority reasons that our decision in Kleypas must be overruled in order to avoid encroaching upon the power of the legislature. One might assume that, had the legislature viewed our decision as an encroachment, there might have been an outcry at the time the decision was handed down. Yet, nothing of the sort occurred. It is ironic that the majority, in its professed desire to avoid usurping the power of the legislature, does so by frustrating the legislature’s clear intent to pass a constitutional death penalty. There is no indication that the legislature, in passing the Kansas death penalty law, was particularly concerned that the sentence be death in the event that the aggravating and mitigating circumstances were exactly equal. As Justice Davis has shown in his dissent, such an “equipoise” event is extremely unlikely to arise outside the realm of hypothetical situations that are more the province of law professors than judges. By invalidating the Kansas death *583 penalty law on the basis of its application to a technical event that is almost certain never to arise in the real world, the majority opinion thwarts the intention of the legislature, ostensibly, in order to pay tribute to it. The only currency and legitimacy this court possesses is the confidence of the public that we will decide cases based on the consistent application of the law, rather than on the proclivities of individual court members. Attorneys, trial courts, and the public have the right to know that a point of law, once settled, will remain the settled law of the state and not be overturned every time the composition of the court changes. Our fidelity to the doctrine of stare decisis need not be absolute, but we should not abandon our prior decisions without a compelling reason to do so. See United States v. International Business Machines Corp., 517 U.S. 843, 856 , 135 L. Ed. 2d 124 , 116 S. Ct. 1793 (1996). No compelling reason has been shown herein and, as a result, I believe the majority opinion is a breach of that fidelity. I joined the dissent of Justice Davis in Kleypas because I concluded as he did that the weighing equation was constitutional as enacted. I still so believe and am joining his dissent herein on that issue. In Kleypas , in a 4 to 3 decision, all seven justices agreed the Kansas death penalty law was constitutional, either as construed in a very minor respect (majority) or as written (dissent). To now strike down the Kansas death penalty law is, in my opinion, wholly inappropriate and unjustified, and I dissent therefrom. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795509. Public record. Not legal advice.